Citation NR: 9711920
Decision Date: 04/08/97 Archive Date: 04/18/97
DOCKET NO. 95-18 209 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to a compensable evaluation for bilateral
hearing loss.
2. Entitlement to a compensable evaluation for tinnitus.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Associate Counsel
INTRODUCTION
The veteran had active duty from July 1986 to September 1992.
The veteran had over 19 years of additional service.
In July 1996, the veteran had a personal hearing before a
member of the traveling section of the Board of Veterans’
Appeals (Board) and a transcript of the hearing is of record.
At the time of the personal hearing the veteran submitted
additional evidence in support of his claim and he waived the
right to have the agency of original jurisdiction initially
review the documentation.
This case was originally developed by the Oakland, California
Regional Office (RO). In April 1994 the veteran requested
that his claim be transferred to the San Diego, California
RO. The claims folder was transferred and the record shows
that the San Diego RO began work on the veteran’s claim in
July 1994.
REMAND
The veteran twice underwent audiological evaluation by the
Department of Veterans Affairs (VA) in connection with his
claims for increase. Specifically, in September 1994, the VA
examiner noted that she was unable to determine specific
threshold levels due to difficulties in getting reliable and
consistent responses from the veteran. In May 1995, the
examiner stated that the veteran’s “responses to tones were
considered to be invalid and of poor reliability.” The
examiner further commented that there was poor agreement
between the veteran’s responses to tones and to speech
stimuli. It was noted that the veteran had good word
recognition ability at normal conversation levels.
In a letter dated in October 1995, the United States Postal
Service indicated that the veteran was denied employment with
the Postal Service, in part, due to a hearing deficiency. A
letter dated in April 1993 reveals that the veteran had a
pre-placement medical examination for employment with the
Poway Unified School District. Reportedly, the results of
the examination lead to a permanent medical restriction
concerning the level of noise to which the veteran could be
exposed. Although the school district was willing to
accommodate the veteran’s “hearing” work restriction, he was
not offered the position due to another disorder. A copy of
the medical reports relied upon by the Postal Service and the
school district should be obtained.
It appears to the Board that the veteran was unwilling or
unable to respond appropriately to VA audiological testing.
Since the veteran has submitted evidence that tends to show
that his hearing ability was a factor in decisions made by
perspective employers, the Board determines that another VA
audiological examination should be performed. In this
regard, the Board points out that the duty to assist is not
always a one-way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining the
putative evidence. Wood v. Derwinski, 1 Vet.App. 190, 193
(1991). Otherwise stated, the veteran is asked to cooperate
and appropriately participate to the best of his ability
during the next VA examination, so that all indicated
information concerning his hearing loss disability can be
ascertained.
Other than the history relayed by the veteran, the VA
examiners in September 1994 and May 1995 did not include
objective findings or final diagnoses regarding the veteran’s
tinnitus disability. A discussion of tinnitus should be
included in the next VA examination report.
Accordingly, to ensure that VA has met its duty to assist the
claimant in developing the facts pertinent to the claim the
case is REMANDED to the RO for the following development:
1. After securing the necessary
releases, the RO should attempt to obtain
any records from medical care providers
who have treated the veteran for hearing
loss and tinnitus since May 1995, the
last examination date of record. The RO
should contact the United States Postal
Service, and the Poway Unified School
District, in an attempt to retrieve
medical reports relied upon by both
agencies in their negative employment
determinations regarding the veteran.
2. The veteran should be afforded a VA
audiology examination to determine the
current level of severity for bilateral
hearing loss and tinnitus. In this
regard the examiner is asked to report
all findings in detail, and to comment on
the reliability of the veteran’s
responses and test results in general.
The examiner is also asked to comment on
the current severity of the veteran’s
tinnitus disability.
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal
remains denied, the veteran should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action until
otherwise notified.
M. SABULSKY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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